Tag Archives: regulation

Foolishness of Zero Tolerance

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…or of intolerance; the two are interchangeable terms in this context.  This context is the overreaction of school management and local police departments to remarks concerning “threats” to schools.

Gina Gobert’s 12-year-old daughter was detained overnight at a police station in Oakdale, LA, after allegedly talking to schoolmates about a social-media post she said she received that threatened violence against the school.

School management, it seems, decided the girl had received no such threat and turned her over to the police, who decided to charge the child with “terrorizing.”

And this:

“You can’t joke about this stuff. It’s just unacceptable behavior in today’s world,” said Sheriff Craig DuMond in Delaware County in New York, where an 8-year-old was arrested in March on a felony charge of terroristic threat for allegedly threatening to burn down his school in Davenport, NY.

With adults, maybe.  But with children?  This is ridiculous, not least because, as minors, they are by definition incapable of making their own calls on such matters.  As a practical matter, though, they’re just too inexperienced—they literally haven’t lived long enough—to be able to form such judgments or to reason through the associated implications.  And: it’s the nature of children to push boundaries as they seek out their places in the world—and to change those places.

And this:

“If you threaten a school, you are going to be charged,” said Eric Smith, a prosecutor in Macomb County in Michigan, where 54 students have been charged in school-threat cases in the two months since Parkland, up from 17 in all of last year. “We get a lot of kids saying they were just joking, wanted attention, were acting out against bullies. Law enforcement doesn’t know if it’s real or not.”

Don’t know, therefor it’s OK to arrest them, lock them up, then do the investigation.  Guilt by accusation, guilt by dislike of what’s being said.  Jokes are no joke.

Even with adults, though, the matter is contextual; blanket bans are just the inflexibility of intolerance, and it suffocates even legitimate interactions.

My usual question, this time for school management and the police: what’s your limiting principle? Where will this naturally stop, and joking around—including dark humor joking—be successfully discriminated from actual threat?

And: is the “zero” tolerance foolish, or is it dangerous to our liberty?

Government Surveillance by Regulation

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Loosely related to a nearby post, now it seems the government is getting worried about the size of the “private” capital market, where folks can place investments in enterprises, particularly startups, without having to go through the public—stock—markets and government regulations that are broadly extensive and deeply intrusive.

The boom is transforming how companies grow, concentrating investing in fewer hands and raising concerns about oversight

The linked-to article’s subhead lays out the whole misunderstanding. Government doesn’t need to be in the business of regulating every little thing we do.  We can manage our investments just fine without Government’s “help.”  And we can suffer our own outcomes if we choose badly or fortune moves against us despite our otherwise correct decisions.

[Some] private placements require no disclosure at all, said Anna Pinedo, a partner at law firm Mayer Brown. “It’s impossible to know who’s raising money this way or from whom.”

It’s none of government’s business to know unless it’s prepared to allege specific crimes.

Michael Piwowar, a[n SEC] commissioner, questioned “the notion that nonaccredited investors are truly protected by regulations that prevent them from investing in high-risk, high-return securities….

It’s not government’s job to protect us from ourselves. That’s our job.

The way to entice investors back to the publicly traded markets is to reduce those regulations and their intrusiveness.

Standards and Markets

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The EPA has decided to revisit, revise, and lower fuel efficiency standards for cars sold in the US for the model years 2022-2025.  The Obama administration EPA had mandated that overall fleet fuel efficiency—averaged across all models of cars built by a manufacturer—be raised to 54.5 miles per gallon by 2025 from 35.5 miles per gallon in 2016.  This would have represented a greater than 50% increase in fuel efficiency in just 10 short years.

Environmentalists are up in arms over the move.  Fred Krupp, Environmental Defense Fund President:

Designing and building cleaner, more cost-efficient cars is what helped automakers bounce back from the depths of the recession and will be key to America’s global competitiveness in the years ahead.

And Jon Foley, California Academy of Sciences Executive Director, tweeted

This move wastes energy, and makes more dependent on foreign oil.

Both misunderstand.  Krupp is right that building better cars helped automakers recover from the Panic of 2008, but he missed two Critical Items.  One is that American automakers, pre-Panic, were churning out junk and losing market share to better manufacturers.  When they stopped building junk, they got competitive again.

That brings me to the second Critical Item.  It was free market competitive forces—and the Panic to drive that home—that enabled the American automakers, building better cars, to get back into the game.  It was free market competition, in response to changing consumer demands, that pushed automakers to build more reliable, more fuel efficient cars (and trucks), with competition moving to hold prices down.

Neither of those had, or have, anything to do with government mandates.

Foley just seems to have not been paying attention over the last few years.  New technologies for locating oil and gas and for extracting those have lowered the cost of oil and gas for a whole host of uses, including car and truck fuel, and those technologies have led the US to be a larger producer of oil and gas than any other nation, save Russia—and we expect to surpass Russia in a couple of years.  There’s not much dependence on foreign oil here.

Oh, and one last thing.  The cost of buying a car won’t be so great now that manufacturers don’t have to waste capital on crash courses in engine development and can instead move at the pace of market competition.

Now, if only we could get rid of the ethanol mandate, too, so car maintenance and food costs could be reduced.

A Better Answer

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The Supreme Court might take up a case involving cy pres, the policy of handing class action suit settlement fund “leftover” money to third parties.  It’s especially used where the number of plaintiffs in the class is huge.

In privacy or data-breach cases, where the number of potential plaintiffs reaches into the millions, the majority of a settlement can go to cy pres recipients.

A 2015 class-action settlement involving Alphabet that centered on its Google subsidiary would have led, after the lawyers’ cut, to four-cent checks being sent to each of nearly 130 million plaintiffs, for instance.

Cy pres also becomes a player when the bulk of the funds are distributed and the remainder is impractical to distribute (“impractical” generally is determined by the court involved, or by the court’s acceptance of an agreement between plaintiffs and defendant(s)).

The Court should take the case and strike the practice.  Part One of a better answer, which the Court can impose, is to reduce the permissible per centage of the total payout that can go to the lawyers.  That would leave more money for the payout and reduce, if only by a little, one of the problems: the pennies distributed were all the monies disbursed to the plaintiffs.

Part Two of the better answer is a political decision, and so it’s beyond the reach of the Court; although, the Justices can, and should, inveigh Congress to address the matter.  That political decision is to bar the leftover monies from going to third parties.  By definition, those entities were not victims of the misbehavior that led to the payout, and so they should not receive any of it.  Instead, the leftovers should be delivered to the Federal or State Treasury, depending on whether the case was a Federal or State one.

Part Two-a of the better answer likely would find the most use in those privacy or data-breach cases, where all of the plaintiffs might each get impractically small payouts.  In this sort of case, all of the settlement funds should go to the Federal or State Treasury.

Free Speech

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The Supreme Court has taken up the case of National Institute of Family and Life Advocates (Nifla) v Becerra, whose proximate subject centers on abortion rights but whose real subject is freedom of  speech.

California’s Reproductive FACT Act, the law in question in NIFLA, requires pro-life centers to advise their clients of the availability of abortion centers.  This is forced speech, and it destroys the 1st Amendment’s protection of freedom of speech, since speech cannot be freely spoken if it cannot also be freely not spoken.  This is as true for factual speech as it is for opinion speech.

The Supreme Court expressly held as much…when it rejected a distinction between compelled statements of opinion and compelled statements of fact, finding that “either form of compulsion burdens protected speech.”

Indeed. And one obvious consequence of losing that distinction (by, for instance, ruling for Becerra rather than for NIFLA) would be to expose all news outlets to lawsuits over their editorial choices of what sets of facts to publish and what to withhold in every single article they publish.